State Ex Rel. Sullivan v. Tazwell
262 P. 220
Or.
1927
Check Treatment
COSHOW, J.

A Circuit Court judge is an officer subject to mandamus within the purview of Section 613, Or. L.: Johnson v. Tucker, 85 Or. 646 (167 Pac. 787); State ex rel. v. Bradshaw, 59 Or. 279 (117 Pac. 284); Che Gong v. Stearns, 16 Or. 219, 223 (17 Pac. 871). The purpose of the writ of mandamus is to “compel the performance of an act which the law especially enjoins, as a duty resulting from an office, * * .” Section 613, above.

It appears from the alternative writ that defendant as circuit judge sustained the motion to quash the service of the summons in the action of relator against said steamship company not because the service was not properly made nor because the sheriff did not make a sufficient return of the service, but because he believed his court to be without jurisdiction of the defendant steamship company. It is conceded by the defendant that the service in all respects was sufficient to subject the defendant in *330 that action to the jurisdiction of the Circuit Court for Multnomah County. It is also conceded by defendant that said Circuit Court has jurisdiction of the subject matter. Consistently from 1789 when the Judiciary Act of the federal government was passed state courts have had jurisdiction of actions arising out of maritime transactions where a remedy according to the course of the common law was appropriate: 1 Stats, at Large, 77, § 9; 36 Stats, at Large, 1091, § 24, subd. 3; 40 Stats, at Large, 395, Chap. 97, § § 1 and 2; 42 Stats, at Large, 634, Chap. 216, clause- 3 of § 24 of the Judicial Code. There is no controversy in this proceeding regarding the jurisdiction of the Circuit Court for Multnomah County over the subject matter which is -the cause of the action of relator against said steamship company.

As we understand the contention of defendant it may be succinctly stated thus: Because relator may avail himself of the provisions of Section 33 of the Jones Act said steamship company has the privilege of being sued only in the district where it resides or has its principal office. The language relied upon by defendant is as follows:

“ * * Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located. ’ ’

“Jurisdiction” as here used has been construed as “venue”: Panama R. R. Co. v. Johnson, 264 U. S. 375, 384, 385 (68 L. Ed. 748, 44 Sup. Ct. Rep. 391); Patrone v. Howlett, 237 N. Y. 394 (143 N. E. 232, 233, 234):

“It (Jones Act) provides for the venue when the action is brought m the United States court, and probably that is as far as it goes in defining juris *331 diction. We have in effect so held in the Lynott case.”

Lynott v. Great Lakes Transit Corp., 202 App. Div. 613 (195 N. Y. Supp. 13, 15, 18), 234 N. Y. 626 (138 N. E. 473).

State courts are not mentioned in connection with' the sentence defining venue referred to. The act was enacted by the Congress. The Congress does hot prescribe procedure for the state courts. As the United States has exclusive control of maritime matters that government could exclude state courts from exercising jurisdiction over maritime litigation. But the Congress has not done so, but has evinced the opposite intention. The language employed and the context manifest that the Congress was fixing the venue for the federal courts and had no reference to the state courts. See, also, Engel v. Davenport, 271 U. S. 33, 37 (70 L. Ed. 813, 46 Sup. Ct. Rep. 410); Panama R. R. Co. v. Vasquez, 271 U. S. 557 (70 L. Ed. 1085, 46 Sup. Ct. Rep. 596). The Congress has not disclosed any intention to regulate the state courts in conducting competent litigation growing out of maritime commerce.

It is conceded that the defendant in said action is a resident of the State of Delaware and has its principal office in the State of New York. The defendant held, therefore, that jurisdiction over the person of the defendant could not be obtained in the State of Oregon in an action based on said Jones Act: Merchant Marine, 1920, 41 Statute of U. S. 988. See Chapter 250, Defendant in his able brief says:

“When the court has inherent power to hear but disclaims jurisdiction, a writ of mandamus may issue provided relator has no adequate remedy at law. When the court has jurisdiction of the subject mat *332 ter, but denies its power to proceed for want of authority over the person or defect of process, a writ of mandamus may not issue.”

There is no doubt that the Circuit Court for Multnomah County has inherent power to hear the case of relator versus Luckenbach Steamship Company. That court has refused to hear that case. He has refused because he disclaims jurisdiction over the person of the defendant in that case. The law seems to be well settled that where a court declines jurisdiction by a mistake of law mandamus will lie to compel him to proceed to hear and determine the case: Merrill on Mandamus, §§ 203-205, 207; 38 C. J. 610; Zachary v. Polk County Court, 74 Or. 58, 62-64 (144 Pac. 1182); In re Grossmayer, 177 U. S. 48 (44 L. Ed. 665, 20 Sup. Ct. Rep. 535); In re Connaway, 178 U. S. 421, 425 (44 L. Ed. 665, 1134, 20 Sup. St. Rep. 951); In re Hohorst, 150 U. S. 653, 663, 664 (37 L. Ed. 1211, 14 Sup. Ct. Rep. 221); Hill v. Morgan, 9 Idaho, 718 (76 Pac. 323). No question of fact is involved. The attitude of the defendant in refusing to entertain jurisdiction is equivalent to refusal to perform his duty enjoined by law. Defendant has no authority or right to say to the plaintiff in the litigation that he will not entertain his action unless plaintiff will waive a right the law gives him. It is the clear duty of the Circuit Court to hear the case instituted by the relator against the steamship company and determine the issues according to the law as they arise in the course of the trial. The,, defendant steamship company can find a way to preserve all of its rights and have the question sought to be determined by the motion to quash the service of summons finally determined by the courts of last resort of the state and nation. There is a distinction *333 between an illegal service of a summons and a defective summons or a defective service of a legal summons: Sealy v. California Lumber Co., 19 Or. 94, 97 (24 Pac. 197). There is also a distinction between a defective service or service of a defective summons and a privilege of a defendant to submit to a trial only in a certain county or district: 4 C. J. 1320, note 45; 2 E. C. L. 33, §20; 40 Cyc. 108, 109, 115 (IV); Baker v. Union Stockyards Nat. Bank, 63 Neb. 801 (89 N. W. 269, 93 Am. St. Rep. 484, 485); Reinstadler v. Reeves, 33 Fed. 308; Dial v. Olsen, 4 Ariz. 293 (36 Pac. 175). There is neither a defective summons nor a defective service of a legal summons involved in the instant case. Said steamship company claims immunity in this state from litigation of the nature instituted by relator.

It is suggested that relator has a remedy by appeal, but we do not think so. The order sustaining the motion to quash the service is not a final order. It is not an order preventing a judgment or decree. Defendant concedes that relator could proceed to trial under his complaint and prosecute his action to a final judgment if he would waive the benefits of the Jones Act.

We cannot determine in this proceeding the sufficiency of the complaint in that action. If said steamship company wishes to test the sufficiency of the complaint, it should proceed by motion or demurrer. Motion to quash the service is not the proper method to determine the sufficiency of the complaint. It may be possible that relator by some circuitous proceeding might have his cause determined, but such proceeding would not be plain, speedy or adequate. We believe the learned circuit judge erred in quashing the service of the summons and in *334 refusing to entertain jurisdiction of said action. Let the peremptory writ issue. Writ Allowed.

Band, C. J., and Belt and Bossman, JJ., concur.